Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. October 12, 2001 Dear Honorable Attorney General Ashcroft and Assistant Attorney General Dinh: I am writing in follow up to my letter dated October 8, 2001 wherein we offered our services to assist your office in drafting proposed regulations that are to be promulgated in accordance with the September 11 Victim Compensation Fund of 2001 (the "Fund"). As a former Assistant United States Attorney in the Southern District of New York, I applaud the efforts that your office has undertaken to find and convict those responsible for the terrorist atrocities of September 11th as well as in your handling of the myriad of issues that have unfolded in the weeks since the attacks. Recognizing that your office is extremely busy, I have taken the liberty of addressing important issues, which I believe the regulations should incorporate if the legislation is to aid the victims and their families. I have done this, in part, because my office has been contacted by the families of over thirty individuals who lost their lives on September 11th and have been asked to represent their interests as a result of the loss of their loved ones. As I am sure you are aware, the regulations will play a critical role in determining the compensation to the victims and families of those injured and killed in the terrorist attacks. Accordingly, I respectfully request that if your office entertains meetings with anyone concerning the regulations, including airline representatives, insurance representatives, etc., I be allowed to participate as a "victims representative" so that the victims of the tragedy have a voice in the promulgation of the regulations. In this regard, the following are our thoughts with respect to certain important issues. One of the most significant issues with the legislation is the definition of "collateral source" as contained in §402(4). The legislation calls for all collateral source payments to be deducted from the award to the claimant and , as such, the definition of same must be restrictively construed. It is generally accepted that "collateral source" refers to contractual payments made to a claimant which compensate for economic losses. The regulations should make it clear that there shall be no collateral source deduction for payments made to victims and/or their families outside of a contractual agreement. The most obvious examples of payments being made to families which fall outside of the definition of collateral source include, but are not limited to, gifts charitable contributions, and any other non-contractual payments made by a decedent's employer. In addition, if an award is made for an intangible loss, such as pain and suffering, this does not compensate for economic loss and, therefore, must fall outside of the collateral source deduction rule. Finally there should be no collateral source deduction if the collateral source is entitled to assert a lien. If the claimant must re-pay the lienholder and the payment is deducted as a collateral source, this in effect would be a double offset which is not permissible under any concept of collateral source deduction. This "bright line" approach has support within the statue itself, i.e. each of the examples listed in the definition of collateral source are all based in contract. See §402(4). Accordingly, by including this definition, the regulation will be consistent with the terms of the statue. The regulations must also clarify the definition of "economic loss" as set forth in §402(5). The definition as it appears in the statute provides for recovery for the "the loss earnings or other benefits relate to employment, medical expense loss, replacement services loss, loss due to death, burial costs, and loss of business or employment opportunities to the extent recovery for such loss is allowed under applicable State law". The reference to "applicable State law" anticipates that some type of choice of law analysis will be required to be undertaken with respect to claims for economic loss. We are particularly concerned that the qualifying term "applicable State law" could be used to "gut" a claimant's economic loss claims. Since the Special Master will be required to determine applicable law, it will be in the best interests of the victims and their families if the regulations set forth a pro-claimant choice of law analysis. The statute itself defines a wide array of economic damages and the choice of law analysis contained in the regulations should be consistent with this broad based definition. While the Special Master will likely look to an interest analysis to determine the appropriate law, i.e., which State has the most significant interest in applying its law in a given case, it is important that the choice of law analysis provide the claimant with the potential for the broadest possible recovery. For example, if New York law (other than the domiciliary law) allows for greater recovery, then the claimant should be able to argue that New York law applies, i.e. the decedent worked in New York, paid New York taxes, etc. If the decedent's domicile provides for more potential elements of damage, domicile law should apply. This type of approach is also consistent with §403 in that the stated purpose of the Act is to provide compensation to those injured or killed. Furthermore, under §403, the regulations must clarify who is entitled to recover under the Act. Simply put, the term "relative" should be construed broadly to include spouse, children, parents, siblings, any relative who was financially dependent upon the decedent, as well as any relative who can demonstrate that he or she has suffered a loss of care, comfort, and companionship (non-economic loss) as a result of the decedent's death. With respect to the right of review and determination set forth in §405, it is essential that the regulations provide each claimant with an opportunity to present evidence to support his or her claim, including the presentation of witnesses and documents, at a hearing. The hearing should be recorded(with the expense for same to be paid by the Fund) so that a record is made of the evidence introduced. Although according to the statute the Special Master has been charged with the responsibility to make a non-reviewable determination and provide written notice of same to the claimant, in all likelihood, a hearing officer will be the individual who makes the determination in a given case. This being the case, the regulations should be written to afford the claimant an opportunity to challenge a hearing officer's award to the Special Master. This can only be done if there is a record made of the hearing. Accordingly, the regulations should allow the claimant twenty days after written receipt of the award to appeal the decision to the Special Master. Although potentially difficult, the claimant should have the right to have a hearing directly with the Special Master in the event that the claimant is not satisfied with the hearing officer's determination as the statute specifically provides for the determination to be made by the Special Master. As concerns evidentiary issues at a hearing, the claimant must be allowed to introduce any documents that he or she deems necessary to establish the claim for damages and the documents should be "freely admitted" so that the claimant need not go through a formal certification process. To facilitate this, some documents could be deemed to be self-authenticating, i.e., tax returns and medical records, and other documents could be admitted through the testimony of witnesses. Documents will naturally include tax returns, employment documents, medical records, etc., but should also include photographs and videotapes so that the hearing officer can actually see and hear the decedent. In addition, the regulations should allow the claimant to submit deposition testimony (including videotaped testimony), of individuals who could not be present at the hearing, as well as all expert reports the claimant deems appropriate. The Act specifically provides a claimant with the right to present witnesses. The regulations should clarify that a claimant may introduce any witness testimony, including, but not limited to, family, friends, relatives, medical care providers, financial witnesses, including, business associates, accountants, as well as any expert witness that the claimant feels is necessary to establish his or her claim for damages. Since this will not be an "adversarial proceeding", adherence to formal rules of evidence are not necessary. All testimony should be deemed admitted and considered by the hearing officer. With respect to a hearing officer's determination, the written report should detail the information relied upon by the hearing officer in making his or her determination. In this way, a claimant who chooses to appeal such a determination to the Special Master will have a basis to do so. It is important that the regulations be drafted in such a way to prevent a "matrix" system of damages. It is certainly not in the best interests of the victims and their families to have "categories" of cases "grouped together" and awarded like amounts, i.e., based upon the number of minor children in a death case, the award for non-pecuniary loss is a pre-determined amount, etc. By fashioning the regulations to provide for individualized hearings and submissions, we can hopefully avoid a matrix system which will invariably lead to lower awards to the claimants who seek compensation through the Fund. I hope that the foregoing comments are helpful. The victims of this tragedy have a significant interest in how these regulations are written. Accordingly, we respectfully request an opportunity to meet with representatives of your office to discuss the foregoing. Certainly, if your office meets with industry representatives, the victims should likewise be present. Thank you in advance for your courtesy and consideration in this matter. Very Truly yours, Individual Comment September 11 Email: Date The local time and date when the message was written. 2001-10-12 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojW000483.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2001-10-12